Peff v. Peff

• Decision Date: 30 June 1949
• Docket Number: Nos. A-58, A-59, A-61, A-213.,s. A-58, A-59, A-61, A-213.
• Citation: 67 A.2d 161
• Parties: PEFF v. PEFF et al.
• Court: New Jersey Supreme Court

67 A.2d 161

PEFF

v.PEFF et al.

Nos. A-58, A-59, A-61, A-213.

Supreme Court of New Jersey.

Argued May 9, 1949.

Decided June 30, 1949.

Appeal from former Court of Chancery.

Suit by Geraldine Peff, by L. Weldon Laughlin, her next friend, against Peter Peff, and others to have a Nevada divorce decree declared void, and for other relief. From a decree for complainant, the defendants appeal.

Reversed in part and modified in part.

Blair Reiley, Newark, argued the cause for the appellant Peter Peff (Martin & Reiley, Newark, attorneys).

William L. Dill, Jr., Newark, argued the cause for the appellants Superior Air Products Co. and Linden Lane Farm, Inc. (Stryker, Tams & Horner, Newark, attorneys).

Robert L. Hood, Newark, substituted next friend, per se, argued the cause for the respondent, Geraldine Peff.

Joseph Steiner, Newark, argued the cause for respondent and cross-appellant, James F. X. O'Brien.

The opinion of the court was delivered by

ACKERSON, J.

This matter comes before us on appeals from a decree of the former Court of Chancery entered in a suit instituted by Geraldine Peff, a mental incompetent appearing by next friend, to have a Nevada divorce, obtained by the defendant, Peter Peff, dissolving their marriage, declared void and of no effect in this state, and to obtain suitable maintenance for herself, to establish her right to inchoate dower in certain real property conveyed by Peter Peff to the defendants Superior Air Products Co. and Linden Lane Farm, Inc. (hereinafter referred to as Superior and Linden respectively) and to establish that certain personal property is held in trust for the defendant Peter Peff by said companies.

This suit culminated in the decree herein appealed from which declared the Nevada divorce invalid, and granted the other relief hereinabove mentioned, including maintenance at the rate of $275 monthly, and awarded to Robert Hood, substituted next friend of the complainant, $10,000 for compensation; to James F. X. O'Brien, her solicitor, a fee of $5,000, and to Leon W. Kapp, as sequestrator appointed by the court in her behalf, the sum of $1,000, together with disbursements in each instance.

The defendants have severally appealed from the aforesaid decree, and complainant's solicitor, James F. X. O'Brien, has appealed from his aforesaid allowance as inadequate.

The Peffs were married in 1931 in New York City. Thereafter they lived in various places in New Jersey, except for intermittent visits by the wife to her parents in Iowa between 1937 and 1939. In 1935 twin daughters were born of the marriage. The defendant, Peter Peff, had been, and still is, engaged in the production of commercial gases and in designing plants for such production. In the latter part of 1937, Geraldine Peff showed symptoms of mental aberration; the final diagnosis was dementia praecox of the paranoid type. Her condition was then such that her physician advised confinement, and upon the affidavit of two physicians she was committed to the Essex County Hospital at Overbrook, apparently pursuant to R.S. 30:4-23 et seq., N.J.S.A. After a short time she was released and visited her parents in Iowa. In the summer of 1938 the children went to visit their mother in the west. The mother and children returned to New Jersey again in the late summer. In the fall of 1939, her condition became worse, requiring private hospitalization, but after a time she insisted on returning to her parent's home in Iowa. This was in December 1939, and she has never returned to New Jersey. She was hospitalized at intervals in Iowa, and there she was adjudged a lunatic on May 25, 1943, and committed to the Clarinda State Hospital for the Insane in that state.

Prior thereto, in 1941, this defendant purchased a country estate, known as Linden Lane Farm, at Eatontown, New Jersey, and moved his children and household there in the hope that his wife would recuperate and be able to join them. However he was later told by a physician that her condition was incurable. Having thus been informed of her incurability, Peff testified that he concluded a divorce was essential for the well-being of the family, particularly the children. He consulted counsel who advised him that insanity was not a ground for divorce in this state. He then concluded to establish a residence in New York City for the purpose of suing for divorce. He moved there in July of 1942, renting an apartment and leasing an office and laboratory for his business in that city.

However in April, 1943, his wife, appearing by her father as next friend, obtained from our Court of Chancery an order restraining the defendant, Peff, from instituting or prosecuting, elsewhere than in New Jersey, any suit affecting the marital status, pending final hearing and until further order of the court. Vide, Peff v. Peff, 134 N.J.Eq. 506, 36 A.2d 203 (E. & A. 1943). On May 27, 1944, by consent of all parties concerned, a decree was entered dismissing the bill of complaint in the last mentioned cause after a general memorandum agreement of settlement had been arranged for on May 24, 1944, whereby her husband was to pay complainant $275 monthly for her support, secured by a $50,000 trust fund, which after her death, was to be payable to the children per stirpes, complainant to release any rights in her husband's property and permit him to sue for divorce in New York. Matters of detail were left for later co-operative action, but after the dismissal of the aforesaid complaint the agreement was never fully consummated for one reason or another, and no suit for divorce was ever brought in New York.

Thereafter in the spring of 1945 Peter Peff arranged for the termination of the leases of his apartment and laboratory in New York, turned over to others the management of the eastern business of Superior, in which he was heavily interested, and on April 13, 1945, moved to Reno, Nevada, where he purchased a home, and where he was joined at the end of the school year by his children and their governess.

On May 26, 1945, he instituted a suit for divorce in Nevada. The record discloses that his wife did not actually appear or participate therein, although she was duly and personally served with process, in the manner provided by Nevada law and pursuant to the order of the court, in Grant City, Missouri, where she was then living with her parents. Since she did not appear the court, on the application of her husband, appointed a guardian ad litem for her. After hearing testimony the court, on July 28, 1945, granted a decree of absolute divorce on the ground of the wife's insanity, a statutory ground for such action in Nevada, and also specifically found the jurisdictional prerequisite of the husband's bona fide domicile in that state. The decree also awarded him the custody of the children and ordered him to pay the sum of $25.30 monthly, or whatever sum was required, to maintain Geraldine in the Iowa state hospital for the insane to which she had been previously committed.

The primary question presented and argued in the briefs before us is whether or not Peter Peff had acquired a bona fide domicile in Nevada so as to entitle the decree of divorce to ‘full faith and credit’ in the courts of our state. The Advisory Master in the court below refused to recognize its validity, holding that it was fraudulently procured through a false simulation of domicile in Nevada on the part of Peter Peff, and also that his wife had become a ward of the former Chancellor and her husband was therefore powerless to change his domicile from New Jersey of his own volition so as to establish a bona fide domicile elsewhere.

In the first Williams v. North Carolina case, 317 U.S. 287, 63 S.Ct. 207, 209, 87 L.Ed. 279, 143 A.L.R. 1273 (U.S. 1942), it was held that a divorce decree must be given extra-territorial recognition under the ‘full faith and credit’ clause of the federal constitution, if obtained in accordance with the requirements of procedural due process in the divorce forum, notwithstanding that the other spouse was constructively served with process in another state and does not appear in the action; and this is true even though the ground of the divorce so obtained is not recognized as a ground for such action in the latter state. So our local policy as expressed in R.S. 2:50-35, N.J.S.A., which denies validity to divorces secured by our citizens who go to another jurisdiction to obtain a decree of divorce for a cause not recognized as a ground therefor in New Jersey, must give way before the ‘full faith and credit’ clause of our federal constitution. Article 4, s 1. Hubschman v. Hubschman, 140 N.J.Eq. 284, 286, 53 A.2d 787 (E. & A. 1946); Giresi v. Giresi, 137 N.J.Eq. 336, 340, 44 A.2d 345 (E. & A. 1945).

Then came the second williams v. North Carolina case, 325 U.S. 226, 65 S.Ct. 1092, 1096, 89 L.Ed. 1577, 157 A.L.R. 1366 (U.S. 1944) which held that ‘the decree of divorce is a conclusive adjudication of everything except the jurisdictional facts upon which it is founded, and domicil is a jurisdictional fact.’ Giresi v. Giresi, supra, 137 N.J.Eq. at p. 341, 44 A.2d at page 348. Therefore the ‘full faith and credit’ clause does not protect a divorce decree, which is not based upon the bona fide domicile of one of the spouses, when such decree is later attacked in another state where the other spouse has remained, unless, under recent decisions of the federal courts, the latter has appeared and actually participated in the divorce proceedings and had an opportunity to raise the jurisdictional question. Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429, 1 A.L.R.2d 1355 (U.S. 1948); Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451, 1 A.L.R.2d 1376 (U.S. 1948).

We will proceed therefore to consider whether the Nevada divorce is properly founded upon the jurisdictional prerequisite of bona fide domicile.

A man has the right to choose his own domicile, and his motive in so doing is...